November 04, 2009

Judge Says D.C. Can't Take Back Pershing Park Documents

Lawyers for the District of Columbia suffered a setback in the Pershing Park mass arrest cases Tuesday, after a federal judge said documents the city had accidentally handed to plaintiffs could be made public even though they allegedly contain sensitive and possibly embarrassing information.

The 7 p.m. ruling followed a flurry of filings yesterday, in which lawyers from the D.C. Office of the Attorney General argued that the 211 pages of documents were covered by attorney-client and attorney work-product privilege, and should never have been given to the plaintiffs’ lawyers in the first place. The city’s lawyers asked Judge Emmet Sullivan of the U.S. District Court for the District of Columbia to either stop the plaintiffs from using the documents in discovery or to issue an order that would keep any information related to the documents out of the public eye.

“In addition to the privileged nature of the communications, several of the documents include statements by high-ranking officials in the District of Columbia Government which, if disclosed to the public, would only serve to embarrass while not shedding light on any matter of controversy in this case,” the city’s lawyers wrote in a court filing.

The plaintiffs, represented by a team that includes Bryan Cave partner Daniel Schwartz, said the office waived its privilege by releasing the documents and failing to take reasonable steps to retrieve them. They wrote that city lawyers knew for months that it had disclosed the documents, and only asked for them to be returned last Friday, when it became clear they would be discussed in the upcoming deposition of an OAG official.

According to the plaintiffs, at least some of the documents dealt directly with former Police Chief Charles Ramsey’s role in the decision to order the mass arrest of IMF and World Bank protesters in 2002. They said portions of the documents already been published or referenced in earlier court filings.

“The claim that these documents remain privileged is farcical and, by its very nature, illustrates the District’s continued effort to continue its prior delaying and dilatory tactics,” they wrote.

The judge ruled for the plaintiffs on both fronts. Afterward, OAG lawyers filed a new motion to stop the deposition of Assistant Attorney General Stacy Anderson, whom the plaintiffs plan to question about the documents.